Madras High Court
M/S.Alfa Shopping vs The Assistant Commissioner (Ct) on 4 February, 2025
Author: Mohammed Shaffiq
Bench: Mohammed Shaffiq
W.A.No.1231 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.02.2025
CORAM :
THE HON'BLE MR.K.R.SHRIRAM, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE MOHAMMED SHAFFIQ
W.A.No.1231 of 2021
and C.M.P.No.7853 of 2021
M/s.Alfa Shopping,
rep. by its Proprietor P.Farook,
No.107/A, No.2 Road,
Koranad,
Mayiladuthurai-609 001,
Nagapattinam District. .. Appellant
vs
The Assistant Commissioner (CT),
Mayiladuthurai -1 Assessment Circle,
Mayiladuthurai,
Nagapattinam District. .. Respondent
Prayer: Appeal filed under Clause 15 of the Letters Patent against the order
dated 04.12.2020 passed by the learned Single Judge in W.P.No.3480 of
2016.
For Appellant : Ms.R.Hemalatha
For Respondents : Mr.M.Venkateswaran
Spl. Government Pleader
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W.A.No.1231 of 2021
JUDGMENT
(Delivered by the Hon'ble Chief Justice)
By the impugned order dated 04.12.2020, a learned Single Judge
dismissed the petition relying on a judgment of the Apex Court in Assistant
Commissioner (CT) LTU, Kakinada v. Glaxo Smith Kline Consumer
Health Care Limited1 . According to the learned Single Judge, because the
Apex Court in Glaxo Smith Kline Consumer Health Care Limited (for short,
'Glaxo Smith Kline') has held that the High Court in exercise of powers
under Article 226 of the Constitution of India ought not to have entertained
writ petition assailing the order passed by a statutory authority, which was
not appealed against within the maximum period of limitation before the
concerned appellate authority, the petition cannot be entertained.
2. We would not take the same view as taken by the learned Single
Judge. We say this because in Glaxo Smith Kline (supra), the Apex Court,
after referring to the decision of the Constitution Bench in the case of
Thansingh Nathmal v. Superintendent of Taxes, Dhubri2, only held that
1 [2020] 77 GSTR 342 (SC) : (2020) 36 STL 305
2 AIR 1964 SC 1419
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although power of the High Court under Article 226 of the Constitution is
very wide, the Court must exercise self-imposed restraint and not entertain
the writ petition. The Apex Court also observed that the High Court may
non-suit the party on the ground that alternative efficacious remedy is
available. We find support for this view in a judgment of a Co-ordinate
Bench of this Court in the case of Mahindra & Mahindra Limited v. Joint
Commissioner (CT) Appeals, Chennai and another3, where paragraphs 4
to 9 read as under:
“4. The learned single judge (Mahindra & Mahindra Limited v. Joint
Commissioner (CT) Appeals [2021] 88 GSTR 278 (Mad)) placed
reliance on the decision of the honourable Supreme Court in the case
of Assistant Commissioner (CT) LTU, Kakinada v. Glaxo Smith Kline
Consumer Health Care Limited reported in [2020] 77 GSTR 342 (SC)
; (2020) 36 GSTL 305 and in the said decision, it was emphatically
laid down that the High Court, in exercise of power under article 226
of the Constitution of India, ought not to have entertained the writ
petition assailing the order passed by the statutory authority, which
was not appealed against within the maximum period of limitation
before the concerned appellate authority.
5. In our respectful view, the decision of the honourable Supreme
Court in the said decision has not held that a writ petition under
article 226 of the Constitution of India is an absolute bar. We are of
the said view after noting the observations/findings rendered by the
honourable Supreme Court in the following paragraphs (pages 361,
369, 370 and 372 in 77 GSTR) :
"11. In the backdrop of these facts, the central question is :
whether the High Court ought to have entertained the writ
petition filed by the respondent ? As regards the power of the
High Court to issue directions, orders or writs in exercise of its
jurisdiction under article 226 of the Constitution of India, the
3 2021 SCC OnLine Mad 16548
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same is no more res integra. Even though the High Court can
entertain a writ petition against any order or direction
passed/action taken by the State under article 226 of the
Constitution, it ought not to do so as a matter of course when
the aggrieved person could have availed of an effective
alternative remedy in the manner prescribed by law (see
Baburam Prakash Chandra Maheshwari v. Antarim Zila
Parishad now Zila Parishad, Muzaffarnagar AIR 1969 SC 556
and also Nivedita Sharma v. Cellular Operators Association of
India (2011) 14 SCC 337. In Thansingh Nathmal v.
Superintendent of Taxes, Dhubri [1964] 15 STC 468 (SC) ; AIR
1964 SC 1419, the Constitution Bench of this court made it
amply clear that although the power of the High Court under
article 226 of the Constitution is very wide, the court must
exercise self imposed restraint and not entertain the writ
petition, if an alternative effective remedy is available to the
aggrieved person.
......
15.. .. The High Court may accede to such a challenge and can
also non-suit the petitioner on the ground that alternative
efficacious remedy is available and that be invoked by the writ
petitioner. However, if the writ petitioner chooses to approach
the High Court
after expiry of the maximum limitation period of 60 days
prescribed under section 31 of the 2005 Act, the High Court
cannot disregard the statutory period for redressal of the
grievance and entertain the writ petition of such a party as a
matter of course. Doing so would be in the teeth of the
principle underlying the dictum of a three judge Bench of this
court in Oil and Natural Gas Corporation Limited (2017) 5 SCC
42. In other words, the fact that the High Court has wide
powers, does not mean that it would issue a writ which may be
inconsistent with the legislative intent regarding the
dispensation explicitly prescribed under section 31 of the 2005
Act. That would render the legislative scheme and intention
behind the stated provision otiose.
......
19.. .. Pertinently, no finding has been recorded by the High
Court that it was a case of violation of principles of natural
justice or non compliance of statutory requirements in any
manner. Be that as it may, since the statutory period specified
for filing of appeal had expired long back in August, 2017 itself
and the appeal came to be filed by the respondent only on
September 24, 2018, without substantiating the plea about
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inability to file appeal within the prescribed time, no
indulgence could be shown to the respondent at all."
6. On a reading of the above extracted paragraphs, it is seen that the
honourable Supreme Court, after referring to the decision of the
Constitution Bench in the case of Thansingh Nathmal [1964] 15 STC
468 (SC), held that although the power of the High Court under
article 226 of the Constitution is very wide, the court must exercise
self imposed restraint and not entertain the writ petition. Further, in
paragraph 15, the honourable Supreme Court observed that the High
Court may accede to such a challenge and can also non-suit the
petitioner on the ground that alternative efficacious remedy is
available and that be invoked by the writ petitioner. In addition, in
paragraph 19, the honourable Supreme Court took note of the fact
that when the High Court refuses to exercise the jurisdiction under
article 226 of the Constitution of India, it would be necessary for the
court to record that there was no case of violation of the principles of
natural justice or non-compliance of statutory requirements in any
manner.
7. Therefore, there are certain broad parameters, within which, the
court has to exercise its jurisdiction under article 226 of the
Constitution of India, which read as hereunder :
(i) if there is unfairness in the action of the statutory authority;
(ii) if there is unreasonableness in the action of the statutory
authority;
(iii) if perversity writs large in the action taken by the authority
;
(iv) if the authority lacks jurisdiction to decide the issue ; and
(v) if there has been violation of the principles of natural
justice, the court will step in and exercise its jurisdiction under
article 226 of the Constitution of India.
8. Further, it would be highly beneficial to refer to the celebrated
decision of the Constitution Bench of the honourable Supreme Court
in the case of Mafatlal Industries Ltd. v. Union of India reported in
[1998] 111 STC 467 (SC) ; (1997) 5 SCC 536 wherein it was held
that the jurisdiction of the High Courts under article 226 and that of
the honourable Supreme Court under article 32 of the Constitution of
India could not be circumscribed by the provisions of the Enactment
(Central Excise Act) and they would certainly have due regard to the
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legislative intent evidenced by the provisions of the Act and would
exercise their jurisdiction consistent with the provisions of the Act.
Further, the court directed that the writ petition would be considered
and disposed of in the light of and in accordance with the provisions
of section 11B of the Central Excise tax Act and for such a reason, the
power under article 226 of the Constitution of India has to be
exercised to effectuate rule of law and not for abrogating it.
9. In the light of the above, we have no hesitation to hold that the
observation of the learned single judge (Mahindra & Mahindra
Limited v. Joint Commissioner (CT) Appeals [2021] 88 GSTR 278
(Mad)) to the effect that there is absolute bar for entertaining a writ
petition does not reflect the correct legal position. Hence, we are
inclined to interfere with the observation made in the impugned
order.”
3. Moreover, in paragraph 15 of Glaxo Smith Kline (supra), it says
“..... However, if writ petitioner chooses to approach the High Court after
expiry of the maximum limitation period of 60 days prescribed under
Section 31 of the 2005 Act, the High Court cannot disregard the statutory
period for redressal of the grievance and entertain the writ petition of such
a party as a matter of course”.
4. After referring to various judgments of the Apex Court, in
Hindalco Industries Limited v. Union of India and another4, a Division
Bench of Bombay High Court [to which one us is a Member – K.R.Shriram,
4 (2024) 464 ITR 236
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CJ], held that “... principle of advancing substantial justice is of prime
importance and while considering the question of condonation, the
revisional authority is not all together excluded from considering the merits
of the revision petition”.
5. In Angel Educational Trust and others v. Kotak Mahindra Bank
Ltd. and others5, this Court held as under:
“5. Delay is condoned to enable doing substantial justice to the
parties. By delaying the filing of the appeal, petitioners did not stand
to benefit. If we do not condone the delay, there is a possibility
that a meritorious matter may be thrown out at the very
threshold and the cause of justice could be defeated. As against
this, when delay is condoned, the highest that can happen is that
a cause would be decided on merits after hearing the parties.
6. When substantial justice and technical considerations are
pitted against each other, cause of substantial justice deserves to
be preferred, for the other side cannot claim to have vested right
in injustice being done because of a non-deliberate action. A
litigant does not stand to benefit by resorting to delay. In fact, he
runs a serious risk. The approach of the authority should be justice-
oriented so as to advance cause of justice. If the case of an applicant
is genuine, mere delay should not defeat the claim.”
[emphasis supplied]
6. In the light of the law enunciated, if we accept what the learned
Single Judge has said, then it would amount to a situation that the
limitation period not prescribed under Article 226 is inserted just because
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there was a limitation period prescribed in the Tamil Nadu Value Added Tax
Act, 2006.
7. For the foregoing reasons, the appeal is allowed and impugned
order dated 04.12.2020 is hereby quashed and set aside. The matter is
remanded to the learned Single Judge for de novo consideration of the writ
petition. There shall be no order as to costs. Consequently, interim
application stands closed.
(K.R.SHRIRAM, C.J.) (MOHAMMED SHAFFIQ, J.)
04.02.2025
Index : Yes/No
NC : Yes/No
bbr
To:
The Assistant Commissioner (CT),
Mayiladuthurai -1 Assessment Circle,
Mayiladuthurai,
Nagapattinam District.
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THE HON'BLE CHIEF JUSTICE
AND
MOHAMMED SHAFFIQ,J.
bbr
04.02.2025
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